Posted
by
kdawson
on Friday October 22, 2010 @01:16PM
from the depends-on-the-definition-of-'who' dept.

mtaht writes "I've just had the interesting experience of being deposed to talk about one of the first embedded, Linux-based, wireless routers. Our (free!) 1998 publication of how to make one predates patent #7035281, filed September 13, 2000, by someone else. Their patent was recently granted and is now being disputed in court, in part using our how-to as an example of prior art. The lawsuit continues; the case goes before a judge shortly, and a jury trial if necessary is scheduled for the spring. I find myself plagued with the question: So... who invented the embedded Linux based wireless router? What relevance does 'who' have, when there is such an enormous confluence of ideas from thousands of people? What constitutes invention, anyway?"

we did that at ReseauCitoyen.be several years ago. At that time there was nothing nor on the Internet nor elsewhere... We never claimed invention for that as this was obvious for us who where in the field... But we build some devices...
We had some design published as public domain ones in hope to see them builded by corporations. And finally that was the case.
So I can not understand that someone is now claiming a patent on such kind of ideas...
PS: I'm not an english language native, so forgive some faults in my wording!

Just an FYI. You just tainted your testimony. Anyone reasonably worth his/her salt as a lawyer looks online to watch discussion of it by witnesses. If there is enough "chatter" your testimony can be thrown into a very poor light. Remember, if you are an expert, why are you asking a bunch of internet board posters what you need to tell a judge?

All ideas, novel or not, are combination of prior ideas. And are certainly expressed in combination of existing words and shapes.

The fundamental challenge for the patent office, and those who are against patents, is that criteria like obviousness, similarity (need to prove assimilation to prior arts,) creativeness, etc. are fundamentally subjective. One could claim Einstein's Theory of Relativity is trivial and obvious, after hearing the details of the Theory; yet it was Einstein, and not billions of people before him in human history, that nailed down the Theory.

I don't think non-subjective definitions of these terms exist. At the end, these come down to who can argue better on a case by case basis.

If you are familiar with the HowTo referenced in the article you'll know that they set up their wireless router(s) to provide connectivity to a location 13 miles away from a DSL uplink to the internet. As the article mentions, the HowTo was actually hosted on the far side of that link. Whether it was technically set up as a bridge or not I don't know, but it provided connectivity in an *outdoor* setting between two wireless endpoints, at least one of which was connected to a very large WAN (the internet.)

The patent may have been filed with other uses in mind - and a patent is generally filed to cover as many uses and ideas as possible - but it is being claimed to apply to the wireless routers we all use, in large part because they use all the same technologies (and I used early Linksys and D-Link wireless routers with antennas in 2002 to provide similar links. I wasn't anywhere near the first to do it, but I read the author's HowTo many times because of it.)

Nothing ever is, which is why we like to come to Slashdot to discuss it.;-)

Nearly every mechanical device invented has just been a combination of simple machines in different configurations.

Yes, that's true. And I don't mean to say people never truly invent things because all machines can be reduced to the lever, wheel, ramp, or its other base components. I'm saying that sometimes when it's applied to software, one finds oneself looking at a patent that says "method for doing a well known task with a computer (or wirelessly, or over a network)". Have you "invented" something, or applied technology?

I don't know all of the details of the state of the art at the time or what the patent actually claims, but from what I do know, I don't think this patent falls clearly into either category.

Well, essentially the guy being discussed built this before the patent was filed for, and publicly told lots of other people how to do it.

So, if there was prior art, the patent is null and void. Or, did the guys with the patent actually create something which was non obvious?

Obviously, we here won't settle this conclusively. It's just sometimes difficult to sort out what actually constitutes an "invention" in some cases.

Is it me, or does the USPTO simply suck at finding prior art? I'm not saying it's their fault, I'm simply saying it's difficult for them to sift through huge amounts of data for each patent looking for the prior art that may invalidate said patent.

Another reason is that, particularly with regard to software and software-related inventions, the PTO has a hard time recruiting qualified examiners. A big reason for this is that examiners have to live in the Alexandria, VA area, which is about as far as you can get from the west coast IT industry.

I've also heard that examiners don't have the resources they need to do a proper search of the non-patent literature, but I don't have any hard data on that.

And, of course, sometimes patent applicants represent their invention one way during prosecution but then try to use it differently during litigation. For example, I believe Yahoo was sued or at least threatened for something to do with its maps website by a company that had a patent on using a computer to map...migratory birds. The claims appeared to read on Yahoo Maps, but it was quite apparent from the application as a whole that the invention was unrelated to anything Yahoo was doing. There's really not much the PTO can do about that.

A while back, I signed onto the peer-to-patent website for awhile, and tried to add some prior art references. I tried to refer the patent examiners to a Communications of the ACM article from 20 years ago, and they said they didn't have access to that and I'd have to get them a PDF(!) Similarly they couldn't seem to come up with a copy of Karrels & McKusic et al. to see what was in 4.3BSD a quarter century ago. I mean, they ought to have a library, right? As a public service, I got an ACM membership again for a year so I could pull down the ACM article and give them a copy...

How are they going to recognize a rehash of old ideas if they don't even have the basic reference materials?

You can invalidate one claim (as it was written) by submitting prior art about that claim.

"as it was written" because the patent holder gets the chance to reword that claim and resubmit.

Invalidating one claim can solve your problems, but patents are written like thickets, so there are often many claims that cover a real world product.

1. A big box2. The machine from claim #1, with a tap3. The machine from claim #1, with a basin4. The machine from claim #2, connected to tubing5. The machine from claim #4, where the tubing is waterproof6....

When you build a house or a petrol pump and someone says you infringe a patent, it's usually more than one claim.

Partial invalidation is possible, and might be enough to solve your problem, but it's a broad task. It's not the "Hey, this looks like the thing I saw in 2003" task that many people think it is.

This is something that bothers me about patents, especially software patents. They don't patent one device, but a huge set of potential devices. I've see software patents that patent on the order of 10^100 unique solutions to a problem.